[EL] Ex-Felon Voting Rights Bill

[Derek Muller]

What exactly is the constitutional basis for Congress extending the right
to vote to ex-felons in federal elections? It isn't, as Section 2(2) says,
the Times, Places and Manner Clause, which *Arizona v. Inter Tribal Council
*expressly notes precludes federal authority over voter qualifications
(and, indeed, apparently killed *Oregon v. Mitchell* in the process
regarding federal power over voter qualifications in federal elections).

Section 2(3) cites "[b]asic constitutional principles of fairness and equal
protection," which is not exactly a basis for legislative authority. The
third sentence of the section cites the 13th, 14th, 15th, 24th, and 26th
amendments empowering "Congress to enact measures to protect the right to
vote in Federal [ed: the power also extends to state] elections," which is
true, but does not necessarily (except, see below) empower Congress to
enforce qualifications regarding felon status. And the third sentence of
the section cites the 8th Amendment's ban on cruel and unusual punishments,
which is certainly correct, but, alas, does not empower of Congress.

Section 2(4)(C) notes that felon disenfranchisement law "disproportionately
impact racial and ethnic minorities," (see also Section 2(10)-(11)), which
is certainly the case--the harder question, under existing Supreme Court
jurisprudence, is whether a racially disparate impact in a sufficient basis
for the exercise of congressional power to expand voter qualifications
under the Reconstruction Amendments--which, I think, is a great question,
and would likely fracture the majority that wrote the statements in *Inter
Tribal* regarding the congressional power over voter qualifications.

Finally, I'd note that it would enfranchise all ex-felons. There are a
handful of states that only bar ex-felons convicted of an election-related
felony from ever voting again.

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341



On Fri, Apr 11, 2014 at 9:38 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  Ex-Felon Voting Rights Bill <http://electionlawblog.org/?p=60375>
>  Posted on April 10, 2014 9:36 pm <http://electionlawblog.org/?p=60375> by
> Rick Hasen <http://electionlawblog.org/?author=3>
>
> Press release<http://www.cardin.senate.gov/newsroom/press/release/cardin-leads-reintroduction-of-bill-to-create-nationwide-standard-for-restoring-voting-rights-for-americans-released-from-prison>
> :
>
> *U.S. Senator Ben Cardin (D-MD) *has introduced a bill, S. 2235, the *Democracy
> Restoration Act
> <http://cardin.senate.gov/download/democracy-restoration-act-of-2014> *that
> would reduce recidivism rates by restoring voting rights to individuals
> after they have served their time and have been released from
> incarceration. Studies indicate that former prisoners who have voting
> rights restored are less likely to reoffend, and that disenfranchisement
> hinders their rehabilitation and reintegration into their community. *Original
> cosponsors of S. 2235 include Senate Judiciary Committee Chairman Patrick
> Leahy (D-Vt.), and Senators Richard Durbin (D-Ill.), Sheldon Whitehouse
> (D-RI), Cory Booker (D-NJ), Tom Harkin (D-Iowa), and Bernie Sanders
> (I-Vt.). *Companion legislation also was introduced today in the House of
> Representatives by Congressman John Conyers (D-Mich.), Ranking Member of
> the House Judiciary Committee.
>
> Meanwhile, William & Mary Law School launches 'Revive My Vote' project.<http://www.vagazette.com/news/va-vg-wm-revive-my-vote-20140409,0,4938146.story>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
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>
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